Man escapes death sentence for killing 2-week-old newborn son

Edward Mutuma will now serve a 25-year prison term for the 2009 murder of two-week-old Hesbon Muchui at Kithare village.

Mutuma was found guilty of murdering Muchui on February 1, 2009 at Kithare village, Meru. 

The Court of Appeal in Nyeri upheld the conviction on May 29, but set aside the death penalty, ruling that a determinate sentence was more appropriate.

The child’s mother, Jocelyn Ngugi, testified that she visited Mutuma’s home that morning with their son. 

She left the baby asleep on a chair in Mutuma’s house while she went to speak with his parents. When she returned, the child had vanished. Mutuma was outside washing muddy hands and trousers. 

“PW2 [Ngugi] enquired about the child’s whereabouts from the appellant and he told her that the child was asleep on the bed. The appellant seemed disturbed,” the court heard. 

The appellant's mother was called and they began a search, as Mutuma attempted to flee. 

Ngugi and Mutuma's sister reported the incident at Kariendini police station, but upon return, found officers from Mujwa Administration Police Service had arrived.

“The appellant was asked to show them where the child was and he led them to a shamba with planted bananas about 50 meters away.

“The police then returned with the child in the clothes PW2 had dressed him in. The child who was dead was placed in a paper bag.”

A postmortem revealed a severe head injury inconsistent with an accidental fall.

As no witness saw the killing and no exhibits were recovered, the prosecution relied on circumstantial evidence. 

During his defence, Mutuma denied any wrongdoing. 

“He went to the bathroom and when he returned, he saw PW2 come out screaming. She ran towards the road. The appellant asked what was wrong, and she told him that, upon entering the bedroom, she pushed the door and the baby fell. PW2’s sister also ran out. The appellant was shocked,” court documents show. 

Mutuma’s lawyer argued that failure to produce a murder weapon and the absence of key witnesses, including the officer who first visited the scene, meant the case was not proved beyond reasonable doubt. 

“Counsel emphasised that the prosecution failed to prove who the killer of the child was or place the appellant at the scene of the crime…Counsel contended that, without a witness placing the appellant at the scene, implicating the appellant was based on mere suspicion, which cannot form the basis of a conviction.”

The state opposed the application, arguing that the medical data established Mutuma's criminal culpability. 

“Further, the appellant's actions following the death strongly indicated his involvement and he even insinuated before the trial court that he did not intend to kill the deceased, requesting the charge be reduced to manslaughter,” the prosecution submitted. 

Justices Sankale Ole Kantai, Jessie Lesiit and Abida Ali-Aroni said the child was left in Mutuma’s house, that he was the only adult present, that he gave “inconsistent and implausible explanations”, and that he led police to the body.

“The appellant was expected to provide a credible explanation for what happened,” the court said.

“His assertions do not add up and even when pieced together, do not form any logical explanation.”

The bench rejected Mutuma's claims that the child fell accidentally after a door was pushed.

"These injuries to the head were meant to cause death or grievous harm to the deceased, and the argument that malice aforethought was not proved is nothing but a desperate attempt to clutch at straws," the judges ruled.

The court dismissed the appeal against conviction but allowed the sentence appeal

“The appeal succeeds only to the extent that the death sentence is set aside and in its place the appellant is sentenced to 25 years’ imprisonment from the date of his arrest.”